The sovereignty thing

Sovereignty is a word we will hear a lot over the next few months. Brexit supporters say we need to leave the EU because it’s a threat to Britain’s sovereignty. According to the Mayor of London (yes, he is still that) parliament lost its sovereignty in 1972 and the only way get it back is to leave the EU. At least, I think that’s what he said but even Carl Gardner (who knows a lot about all this) wasn’t entirely sure what he meant.

Fortunately, for those of us who would like to understand the idea of sovereignty in a bit more detail, there are plenty of people writing more clearly on the subject. There are two important points.

Firstly, on parliamentary sovereignty; parliament can make any law it likes. As Carl explains:

When we say Parliament can make any law whatever, we really mean it. It’s a radical idea, that many law students find hard to believe at first.

While in some countries it is possible to challenge legislation in constitutional courts, there are no such constraints on the UK’s parliament. As Mark Elliot says:

A law directing the killing of all blue-eyed babies would be valid. The fact that such laws remain unenacted is thanks to “political constitutionalism” as opposed to “legal constitutionalism”: it is political, not legal, factors — including, one hopes, legislators’ own sense of morality — that operate as the restraining force.

Let’s take a recent example. Donald Trump has said that he would ban all Muslims from entering the US. If he were elected, though, he might find that promise difficult to keep. It would certainly be challenged in the courts and would probably be declared unconstitutional. A British prime minister faces no such constraints, apart from those that parliament has chosen to impose on itself. And these can always be repealed.

This piece in the FT by Philip Stevens explains the position clearly:

[E]even as authority is delegated, the sovereignty of parliament remains unfettered. What Westminister devolves it can reclaim. International treaties and commitments bind Britain only in so far and for so long as a majority of parliamentarians so decide. Each and every one could be abrogated by a simple legislative act. Britain is free to leave the UN, quit Nato and renounce its human rights commitments whenever it so chooses.

The same is true of the EU. Membership of the union represents the most extensive and complex exercise in the delegation of authority to a supranational organisation. The European Court of Justice adds a dynamic legislative interpretation mostly absent elsewhere. The basic principle remains, however: the accession treaty can be revoked at the whim of parliament.

So all those horrid EU laws, including the dreaded European Communities Act 1972 that Boris Johnson was complaining about, can be repealed. EU law only has primacy over UK law in certain areas because Parliament says it has. And Parliament can change its mind about that whenever it likes.

Here’s Mark Elliot again:

If EU law is supreme, can Parliament be sovereign? The answer is ‘yes’. This follows because the default primacy enjoyed by EU law in the UK is itself attributable to an Act of Parliament—that is, the 1972 Act—and Parliament remains capable of amending, overriding or even repealing that Act.

The second point is that there is always a tension between national sovereignty and matters of geopolitics and global trade. George Magnus explained this in Prospect a couple of weeks ago:

There is a trade-off to be made, then. In light of this, you cannot have an abstract discussion about sovereignty without saying what you are going to surrender in terms of economic integration and benefit. Brexiteers are free to discuss “taking back control,” but they are then under an obligation to discuss the potential economic disadvantages of doing so.

Even outside the EU, as this week’s Bagehot column in The Economist points out, the UK would still be subject to 700 international treaties, a member of the UN, WTO, NATO, IMF and World Bank, and subscribe to a swathe of nuclear test ban, energy, water, maritime law and air traffic treaties. The idea that leaving the EU would lead to a golden era of UK sovereignty and self-determination, is, it is fair to say, far-fetched at least.

North Korea is an example of sovereignty taken to its extreme. The government there does whatever it wants to but the trade-off is that no other country in the world wants anything to do with it. Any government can exercise as much sovereignty as it likes but it has to decide how much its people are prepared to sacrifice as a result. Iran, for example, could have chosen to continue its nuclear programme but it would have therefore had to continue to endure the trade embargo.

Such de facto limits on sovereignty are inevitably a function of power. Burma became a pariah state after its violent suppression of popular protests. The US, EU and others imposed sanctions. China, on the other hand, can shoot protesters in the streets and still be awarded the Olympics. Having a growing economy and a fifth of the world’s population means that you don’t have to worry quite as much about what other people think.

The EU is an attempt to resolve some of this tension by creating institutions to govern a series of trade agreements. With the European Parliament it has even tried to subject them to some democratic accountability. In the interests of trading with each other, EU countries give up some of their day-to-day sovereignty and agree to be subject to EU law. Even so, any one of those countries can leave the EU at any time. This is a fact which seems to get lost in the noise about sovereignty. Even if the UK votes to stay in three months from now, that still wouldn’t stop it from leaving in the future.

The same is true of all the international treaties to which the UK has signed up. If the British voters decide that the risk of adhering to these treaties is worse than the consequences of withdrawing from them, then there is nothing to stop us from doing so. The Atlantic reported last week that Barak Obama had pointedly reminded David Cameron of his NATO obligation to spend at least 2 percent of GDP on defence, after which the defence budget was ring-fenced. Is that another constraint on our sovereignty? Only because we want to be members of NATO. We can always decide to leave.

The UK is a sovereign state and, within it, its parliament is sovereign. Like most other countries, it chooses to be bound by international treaties and trading agreements. None of these are irreversible. If we are prepared to deal with the consequences, we can repudiate any treaties we don’t like. None of that will change whether we vote to stay or go on 23 June.


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12 Responses to The sovereignty thing

  1. eatlupins says:

    I know we all like statements which we agree with, but I really do think this is an excellent piece. If you disagree with any element of the post, please, please, please post with your reasons why.

  2. sdbast says:

    Reblogged this on sdbast.

  3. Jim says:

    Its not sovereignty in the legal sense, its sovereignty in the democratic sense. The Leave side wish to return sovereignty to the people, so that they can in the future decide (via the ballot box) how we are governed. At the moment the political class control whether we are in the EU, which largely controls much of UK legislation. Until the advent of UKIP all the major parties were pro-EU, there was no choice. If we vote no now, there we will never be given another chance to regain the sovereignty that was voluntarily given up in 1975. The political class will close ranks. The only way to get the political class to listen to the people is to ensure the people have the power to vote to change things – at the moment which ever major party you vote for, they all want to stay in, and the FPTP system mitigates against single issue parties.

    After all if the principle that at any point in time Parliament is supreme and cannot bind its successors is fair, then its only fair that no generation of voters can bind its successors either. In fact if Parliament is supreme and its just a voluntary giving up of sovereignty we should have regular votes on whether to stay in the EU, probably every 25 years. I’m 45, I’ve never had a chance to vote on whether I want to be in the EU, indeed it was the EEC when I was a lad. Anyone who is under the age of 58 has never had the input into the UK’s future that anyone over 58 had back in 1975. And a huge proportion of those voters in 1975 will now be dead, so why should their vote then bind us now for all eternity, or indeed my vote today bind the UK population of 2040?

    • Dave Timoney says:

      “The Leave side wish to return sovereignty to the people”. Au contraire. The UK is unusual in that there is no recognised concept of popular sovereignty, either legally or politically. The actual basis of sovereignty, and thus power, is the Crown in Parliament, which is a deliberate contrivance that obscures the absence of a true democracy.

      A return to status quo ante 1973 would make no difference. We would still have an undemocratic upper chamber and the executive would still use royal prerogative (i.e. issue legislation without oversight by the Commons, though potentially subject to challenge in court). If you wish to give sovereignty to the people, you must first abolish the House of Lords and declare a Republic. I’m game if you are.

      • Tony Maher says:

        Royal prerogative has been turbo charged by the EU. It was dying quietly on the vine before it became the vehicle for European legislation. There is a sort of complacent conservatism that doesn’t care that the archaic and unrepresentative elements of our power structure have been renewed and re-engineered by our membership of the EU.

        We need to be rescued from radicalism as a sort of historical re-enactment society nostalgically blathering on about a now neutered House of Lords. Radicalism needs to construct a genuine challenge to the abuse of power right here and now.

        Permanent government, growth of executive power, lack of transparency, lack of accountability – that is the sovereign dividend of our EU membership and you don’t have to be a kipper to say so….

  4. Danny A says:

    This all seems to be a case of semantics to me. So its specifically that the UK would *exercise* sovereignty by leaving the EU rather than *regain* it; I would never expect such nuance in a big media driven campaign.

  5. Keith says:

    Jim has missed the point that being Sovereign is a logical contradiction. No Nation is totally free to do what ever it likes. No one is actually “Sovereign”. All the free trade treaties the out people keep pointing too as an alternative to EU membership would also constrain British “sovereignty” by imposing legal duties the courts can be required to enforce. At the behest of Business men living in Australia, or Zurich, or Peoria.

    The amusing aspect of these debates is the inability of people who get worked up to notice the Sovereign power of Parliament can allow unlimited delegation. As for a republic that would have no effect unless you adopt a written Constitution and let the courts enforce it. In which case Parliament is not supreme. The people might be supreme but that does depend on other factors such as the Independence of the Judiciary and rules about how you amend or revise the Constitution.

    If Trump can appoint enough Judges to the supreme court is it really true he cannot ban Muslims entering the USA? Pack the courts with yes men and they will agree with what ever you like. That is the weakness of Judicial Law making.

  6. TheophileEscargot says:

    Dani Rodrik’s blog has a bit recently on how international agreements can be undemocratic, though are not necessarily so:

    While it’s theoretically possible to amend treaties and exit organisations, in practice there’s a huge level of difficulty and cost to doing so. It’s a lot harder to amend a part of an international treaty than if it was a national law.

    Peter Mair’s book “Ruling the Void” has quite a bit on the EU from a different angle. He points out that foisting off unpopular decisions onto technocrats and the EU is a way that national politicians avoid responsibility for them. But that avoidance creates a perception that politics is irrelevant. If politicians say enough times “nothing we can do, it’s the EU” then people lose faith in politics.

  7. rogerh says:

    Didn’t King Canute demonstrate the realities of ‘sovereignty’, it is an imagined thing constrained by reality.

    I reckon this whole in-out thing is really about frustration within the political class, an attempt to break away from one set of constraints but without admitting we will walk into another set. Economic reality will not change. The only advantage is a possible career boost – albeit temporary – for a few early movers.

  8. stillstriving says:

    Great article, thanks.

    Word count so far sovereign/ty – 46
    liberty – nil

  9. Pingback: Let’s stick together | Craig Ryan

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